Opinion
December Term, 1841.
Where A. carried on a suit in the name of B. without or against the consent of the latter, whereby B. was compelled to pay costs, B. may maintain an action on the case against A. to recover damages for the injury he has thus sustained.
CASE tried at September Term, 1840, of RUTHERFORD, before Bailey, J.
J. G. Bynum for plaintiff.
No counsel appeared for defendant.
The facts Rutherford in the name of Lewis Metcalf and John Bradley against one Claton Brown. When the suit was called Brown's counsel moved to dismiss it, because no bond had been given for its prosecution. The court directed that Metcalf be called (the other plaintiff, Bradley, having left the State), and he was informed of the motion to dismiss the suit. Metcalf then declared to the court that he had nothing to do with the suit; that he had not authorized the suit to be brought, and he desired that it should be dismissed. The present defendant, John H. Alley, then in court, said he opposed the dismission of the suit, and desired it to be carried on; that John Bradley was in court, and that he was ready to give security for the costs. Alley then gave a bond, signed John Bradley's name by himself as agent, and also signed as security. The bond was received by the court and the cause continued. At a subsequent term of the court the cause was submitted to a jury, and a verdict returned for Brown. An execution thereupon issued for the costs, which were collected out of the present plaintiff. The court instructed the jury that Metcalf had a right to dismiss the suit, and that, if the present defendant opposed the dismission, and thereby caused the court to have the cause continued in the name of both, and the plaintiff afterwards had the costs to pay in consequence of the wrongful act of the defendant, he, the plaintiff, had a right to maintain this suit, and recover of the (39) defendant the amount of costs incurred in the former suit.
There was a verdict and judgment for the plaintiff, and the defendant appealed to the Supreme Court.
It appears that Alley, without authority, caused Metcalf to be joined as a plaintiff in the writ and declaration against Brown. In the progress of that suit, when Metcalf first learned that his name had been used, he came into court and moved to dismiss it. The motion was opposed by Alley, and at his instance the suit was continued in court till it was tried, when there was a judgment against the plaintiffs for costs. Bradley being out of the State, Metcalf was forced by execution to pay these costs. It appears to us that the instruction of the judge, upon these facts appearing in evidence was correct. The plaintiff had sustained an injury in consequence of the wrongful acts of the defendant; and the appropriate remedy was an action of trespass on the case. The judgment must be
PER CURIAM. Affirmed.
Cited: Hackett v. McMillan, 112 N.C. 522.
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